People For the American Way Foundation

The Tenth Circuit today released its opinion in Little Sisters of the Poor v. Burwell, becoming the latest federal appellate court to reject the claim that the Obama Administration’s contraception coverage accommodation for religious nonprofits violates their religious liberty.

This is the latest effort by the far right to redefine “religious liberty” and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights. Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The Tenth Circuit now joins the DC Circuit, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits. Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the Hobby Lobby case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive. (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with Hobby Lobby.)

The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won’t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage. The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.

The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs’ religious exercise and therefore does not violate RFRA. The court stated:

The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage. Plaintiffs do not “trigger” or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage. Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.

The court does not question the sincerity of the plaintiffs’ assertion that filling out the form violates their religious beliefs. But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:

If plaintiffs could assert and establish that a burden is “substantial” without any possibility of judicial scrutiny, the word “substantial” would become wholly devoid of independent meaning. Furthermore, accepting any burden alleged by Plaintiffs as “substantial” would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise. (internal citation removed)

Whether it’s women’s ability to access their legal right to healthcare or same-sex couples’ ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from – and severely weaken – laws they disapprove of by citing their personal religious beliefs.

But that is a recipe for a Balkanized society, not a healthy pluralistic democracy. Citing a previous case, the Tenth Circuit states: “Law accommodates religion; it cannot wholly exempt religion from the reach of the law.”